Citation Nr: 0028909
Decision Date: 11/01/00 Archive Date: 11/09/00
DOCKET NO. 97-33 961 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for tinnitus, currently
evaluated 10 percent disabling.
REPRESENTATION
Appellant represented by: Michael E. Wildhaber, Attorney
at Law
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active service from September 1957 to March
1958.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North
Carolina, in July 1997 that denied the claimed benefits.
In March 1999, the Board issued a decision in this case that
denied an increased rating for tinnitus. Pursuant to a Joint
Motion for Remand and to Stay Further Proceedings (Joint
Motion), the United States Court of Appeals for Veterans
Claims (Court), by an Order dated in May 2000, remanded the
case to the Board for further action.
The Board notes that the veteran was previously represented
before the Board by The American Legion.
REMAND
The Joint Motion indicated that the Board's decision did not
articulate adequate reasons and bases for its findings and
conclusions and that, in light of evidence suggesting that
the veteran's tinnitus had worsened, the record before the
Board was inadequate for rating purposes. The Joint Motion
stated that further development of the record, including
affording the veteran an ear examination, and readjudication
of certain portions of the case are necessary.
Therefore, this case is REMANDED for the following additional
actions:
1. With any needed signed releases from the
veteran, the RO should request copies of up-to-date
records of any examination or treatment, VA or non-
VA, that the veteran has received for his service-
connected tinnitus. All records so received should
be associated with the claims file.
2. The RO should request that the veteran submit
evidence of the severity of his service-connected
tinnitus, including any marked interference with
his employment caused by the tinnitus, e.g., a
letter from his employer showing concessions made
to the veteran on account of the tinnitus, or other
evidence demonstrating a level of disability not
contemplated by the current rating.
3. Upon completion of the above development of the
record, the RO should schedule the veteran for an
examination by an ear, nose, and throat specialist.
The claims file, including a copy of this REMAND,
must be made available to the examiner "in advance
of the examination," as specified in the Joint
Motion. All indicated special tests, including an
audiometric evaluation, should be completed. The
examiner's report should set forth in detail the
veteran's complaints regarding his tinnitus and any
pertinent clinical and audiometric findings. The
examiner should be requested to provide a medical
opinion as to the following questions:
a. Does the veteran's service-connected
tinnitus present an unusual or exceptional
disability picture for that disability?
b. From a physician's perspective, what
effect should the veteran's tinnitus be
expected to have on his employment?
All opinions should be supported by reference to
pertinent evidence contained in the claims file.
4. The RO should then again consider the veteran's
claim for an increased rating for his tinnitus, to
include the question of whether this case should be
referred to appropriate VA officials for
consideration of an extraschedular rating under the
provisions of 38 C.F.R. § 3.321(b) (1999). If
action taken remains adverse to the veteran, he and
his attorney should be provided with a supplemental
statement of the case and they should be given an
opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified, but he may furnish additional evidence and argument
while the case is in remand status. Kutscherousky v. West,
12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By
this REMAND, the Board intimates no opinion, either legal or
factual, as to any final determination warranted in this
case. The purpose of this REMAND is to obtain clarifying
information and to provide the veteran with due process.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
C. W. Symanski
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).